Are your indoor tomato plants probable cause for an armed raid?

posted at 3:21 pm on April 1, 2013 by Mary Katharine Ham

One of the reasons I’m not keen on the drug war, particularly when its aim is to rustle up small-time marijuana growers and users, is that a lot of people are unnecessarily endangered in raids like this one. Not only does it sound like the Hartes were molested for no reason, imagine the fear and margin for error involved in an armed raid of a home with two young children in it. It’s not as if police SWAT teams have a particularly good record of restraint once they’re armed to the teeth and busting into a home. The stakes have been raised, the officers amped to expect a dangerous situation, and the results are too often tragic for homeowners, children, and dogs. (This paragraph, of course, cannot fail to include the fact that I respect law enforcement officers and the many risks they face to protect us, but that doesn’t mean we shouldn’t examine practices that make horrible mistakes more likely.)

Two former CIA employees whose Kansas home was fruitlessly searched for marijuana during a two-state drug sweep claim they were illegally targeted, possibly because they had bought indoor growing supplies to raise vegetables.

Adlynn and Robert Harte sued this week to get more information about why sheriff’s deputies searched their home in the upscale Kanas City suburb of Leawood last April 20 as part of Operation Constant Gardener — a sweep conducted by agencies in Kansas and Missouri that netted marijuana plants, processed marijuana, guns, growing paraphernalia and cash from several other locations.

The details of the raid:

The suit filed in Johnson County District Court said the couple and their two children — a 7-year-old daughter and 13-year-old son — were “shocked and frightened” when deputies armed with assault rifles and wearing bullet proof vests pounded on the door of their home around 7:30 a.m. last April 20.

During the sweep, the court filing said, the Hartes were told they had been under surveillance for months, but the couple “know of no basis for conducting such surveillance, nor do they believe such surveillance would have produced any facts supporting the issuance of a search warrant.” The suit also said deputies “made rude comments” and implied their son was using marijuana.

A drug sniffing dog was brought in to help, but deputies ultimately left after providing a receipt stating, “No items taken.”

The myth of a U.S. Supreme Court hopelessly divided along liberal/conservative lines took another hit today as Justices Antonin Scalia and Clarence Thomas split with their fellow conservatives to rule that police can’t use a drug-sniffing dog to establish probable cause for a search warrant.

The sniffing of the dog outside the homeowner’s door was itself an illegal search, the court ruled in an opinion written by Scalia, and thus it was prohibited under the Fourth Amendment guaranteeing citizens be secure in their homes and property…

Writing for the majority, Scalia said officers trespassed on Joelis Jardines when they approached his door with a drug-sniffing dog on a six-foot leash to investigate a tip Jardines was growing pot inside. The dog sat down, as he was trained to do in the presence of drug odors, and the officers used that evidence to obtain a search warrant.

Scalia said that while the Supreme Court has approved of some kinds of property searches, such as of open fields, “when it comes to the Fourth Amendment, the home is first among equals.” At the core of that amendment is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” he wrote, citing an earlier decision.

English common law has long established the rights of salespeople, politicians, Seventh Day Adventists and even police to enter a person’s property and knock on their door, Scalia wrote in an opinion joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor, Clarence Thomas and Elena Kagan. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else,” he said.

To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.

“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use,” wrote Justice Antonin Scalia. You would think special sense-enhancing technology with four legs and a wet nose would likewise trample on privacy.

But for some reason Scalia, who wrote the court’s latest opinion as well, shied away from extending his impeccable logic. Instead, he said the dog-sniffing was out of line because it involved trespassing on private property. Once the officers ventured into the area owned by Jardines without his permission, the Fourth Amendment limited what they could do.

The trespass rationale worries Christopher Slobogin, who directs the Criminal Justice Program at Vanderbilt Law School. “If the next case involves a drug-sniffing dog smelling an apartment that abuts a public sidewalk, presumably Scalia would say there is no search because there is no trespass,” he says. “But the privacy invasion of the home would still be just as significant.” Plenty of urban residences are within a few feet of a sidewalk, making them vulnerable to an accusatory Labrador retriever.

Justice Elena Kagan agreed, in a concurring opinion. In her view, cops violate privacy rights “when they use trained canine assistants to reveal within the confines of the home what they could not otherwise have found there”—even if they do it from a public way.

Why does it matter? Because dogs are the least of the ways in which the government will eventually be able to monitor spaces that once afforded sanctuary to anyone who wants to be left the hell alone. Last year, the court said police needed a warrant to put a GPS tracking device on a man’s car because they “physically occupied private property”—the vehicle—”for the purpose of obtaining information.”

And, yes, this post has to do with food, too. When police powers interfere with fresh vegetables, you have crossed the line in my book, buddy.

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Two former CIA employees whose Kansas home was fruitlessly searched for marijuana during a two-state drug sweep claim they were illegally targeted, possibly because they had bought indoor growing supplies to raise vegetables.

Who the hell gave a search warrant based on that? That judge should be jailed – without a trial, the way he seems to like it.

And what happens when a dog sniffs old MJ seeds etc. from an apartment’s former occupants from like years before?
The abuse of this stuff is mind boggling.
Patriot Act, Drone technology, police checkpoints stopping people for sobriety tests without having any evidence to the contrary & other $hit like this makes one realize we really do live in a police state.
You traded your Liberty for safety you worthless a-holes who are for this $hit.
And I hate you for it.

The Hartes say they were targeted because they bought small amounts of indoor gardening supplies for tomatoes and squash.

“they bought small amounts of indoor gardening supplies” is a very vague description-it doesn’t say exactly what they bought, and how they bought said supplies. Did they buy them in person from a local store, or did they purchase these supplies by mail order?

If they bought said supplies in person from a local store, seems to me the only thing that would arouse suspicion would be if they were buying unusual amounts of fertilizer, a la Timothy McVeigh, or if they were purchasing an unusual number of grow bulbs. Both tomato and squash plants require regular feeding, but if one is growing an average-sized garden for 2 people, that would not require 100 pounds of fertilizer, or require 25 grow bulbs.

But if they bought these supplies by mail order, they might be easier to track. Aerogrow is a major mail-order retailer of indoor growing systems, so could it be that the Feds are now keeping track of the mail order customers of such suppliers?

…police checkpoints stopping people for sobriety tests without having any evidence to the contrary & other $hit like this makes one realize we really do live in a police state.
You traded your Liberty for safety you worthless a-holes who are for this $hit.
And I hate you for it.

Badger40 on April 1, 2013 at 3:31 PM

The SCOTUS approved of this smashing of the 4th Amendment.

Several states over-ruled them and forbid such police state crapzalooza.

If they are involved in marijuana then they deserve to have their property confiscated and any pets shot. Marijuana is a felony.

You care about traumatized children? They have been living in the sinful household and failed to turn their parents in. They should be taken away by authorities before the secondhand marijuana smoke turns them insane.

Dammit. I’ve got tomatoes, peppers, okra, squash, leeks, lavender, cabbage, basil, broccoli, broccoli raab and nasturtiums started in my house. The grow lights are by a window, too, and you can see them through the curtain. I almost feel like I need to contact the sheriff deputy that is a friend of the family to let him know…

3 times last year ATF barged into my house, looking for home-made bombs. Seems they were suspicious because I had been making regular purchases of gasoline from several different locations. They confiscated my pushmower and chainsaw, but I got those back once I convinced them I have several devices that use gasoline, including a couple of cars in addition to the yard hardware.

Dammit. I’ve got tomatoes, peppers, okra, squash, leeks, lavender, cabbage, basil, broccoli, broccoli raab and nasturtiums started in my house. The grow lights are by a window, too, and you can see them through the curtain. I almost feel like I need to contact the sheriff deputy that is a friend of the family to let him know…

cptacek on April 1, 2013 at 3:41 PM

Tons of cayene pepper around the yard work wonders on the inside of a dogs nose. So do little mouse traps (which I use around the house to take care of visiting cats….just lay a thin layer of mulch on’em after you set the spring…..put them around your landscaping…I’ve got around 2 s dozen I set out when I have “issues” with the neighborhood cats)

Tons of cayene pepper around the yard work wonders on the inside of a dogs nose. So do little mouse traps (which I use around the house to take care of visiting cats….just lay a thin layer of mulch on’em after you set the spring…..put them around your landscaping…I’ve got around 2 s dozen I set out when I have “issues” with the neighborhood cats)

BobMbx on April 1, 2013 at 3:50 PM

The cayenne pepper would probably wreak havoc with my Blue Heeler, and the mouse traps with my toddler. But thanks for the suggestion. :)

So do little mouse traps (which I use around the house to take care of visiting cats….just lay a thin layer of mulch on’em after you set the spring…..put them around your landscaping…I’ve got around 2 s dozen I set out when I have “issues” with the neighborhood cats)

BobMbx on April 1, 2013 at 3:50 PM

Sounds like something I would have liked to try when I had trouble with a neighbor’s cat several years ago.
Wouldn’t do that now since a long-tailed weasel moved into the area – they eat mice and voles – which I have a lot of, since I back to open space that is protected Prebles Meadow Jumping Mouse habitat – but less now with the weasel around.
And my own dogs would get into anything out in the back yard….

And what happens when a dog sniffs old MJ seeds etc. from an apartment’s former occupants from like years before?
Badger40 on April 1, 2013 at 3:31 PM

And they can. I saw that demonstrated in Air Force dorms in 1980. In the middle of the night, the SPs brought the dogs through the hallways and they alerted on the room I was temporarily sharing with a Sgt. All they found were a few very old burnt seeds under the edge of the carpet behind the headboard of one of the beds.

were “shocked and frightened” when deputies armed with assault rifles and wearing bullet proof vests pounded on the door of their home around 7:30 a.m. last April 20.

And what might have been the result if the Hartes had gone to the door with a gun in hand, or better yet let go a couple shotgun blasts through the door as a warning – a la Slo Joe?
Would the SWAT have “found” something in the house to justify killing the innocent residents?

One poster hit it on the head when he said the judges need to be looked at for issuing an order to break into a house based on the purchase of tools and garden supplies. If they want druggies there are plenty of them around but usually they are the ones that the police would rather avoid politically.

You traded your Liberty for safety you worthless a-holes who are for this $hit.
And I hate you for it.

Badger40 on April 1, 2013 at 3:31 PM

No, they surrendered liberty for the promise of increased safety. A promise which will never be kept. In actuality we are no safer today than before all this $hit was enacted. Less as a matter of fact since we are now more at risk from the very people that are supposed to be protecting us. I’m with you. I detest anyone who would willingly surrender their freedom for any reason. They are not citizens they are subjects.

This law gives Monsanto authority over federal courts and allows it to plant experimental GMO crops even if they pose an extreme risk to human health and environmental health.

The Monsanto Protection Act, part of the HR 933 continuing resolution, allows Monsanto to override U.S. federal courts on the issue of planting experimental genetically engineered crops all across the country. Even if those experimental crops are found to be extremely dangerous or to cause a runaway crop plague, the U.S. government now has no judicial power to stop them from being planted and harvested.

It’s probably not just the grow lights that raised the suspicion. I have a couple of friends who started a business selling organic, grafted tomato plants. It was a very eye-opening experience for them when they found out that most of the businesses they thought would be competitors were actually just using “organic grafted tomatoes” as a code-word for their real product…

I’m of course not condoning what happened here at all, just sharing one of those weird bits of knowledge I have floating around in the cranium…

If they are involved in marijuana then they deserve to have their property confiscated and any pets shot. Marijuana is a felony.

Seven Seas on April 1, 2013 at 3:37 PM

Did you forget your sarc tag? Just curious.

FYI growing marijuana in Kansas is only a felony if you grow more than 4 plants, and many of Kansas’ neighboring states do not even have laws regarding the growing of pot.

And some states, like Kansas’ neighboring state of Colorado, let one grow up to 6 plants with no penalty. And in my neighboring state of Maine, growing pot is only a felony if one grows more than 99 plants.

If they bought said supplies in person from a local store, seems to me the only thing that would arouse suspicion would be if they were buying unusual amounts of fertilizer, a la Timothy McVeigh, or if they were purchasing an unusual number of grow bulbs. Both tomato and squash plants require regular feeding, but if one is growing an average-sized garden for 2 people, that would not require 100 pounds of fertilizer, or require 25 grow bulbs.

Del Dolemonte on April 1, 2013 at 3:35 PM

Is there anything illegal about buying 100 pounds of fertilizer? It’s illegal to use fertilizer, in any amount, to make an explosive. But buying fertilizer, in and of itself, is not illegal, and police should not be in any way tracking purchases of perfectly legal items.

Cops in the field can do whatever they please. K9 alerting on drugs? How about a cop simply claiming his dog alerted on a scent – when it actually didn’t?

Sparks, Nevada cop gins up a DUI charge as pretext to search a car. He discovers a video camera recording the events on the passenger seat of the car (you hear him “hmmmm” near 4 minute mark), switches the camera off and then removes and steals the memory card.

He is unaware of a secondary concealed camera mounted under the dash panel center console. We literally watch the cop steal the memory card and hear the cam beep as it powers down – all seen via the reflection on the driver’s side window.

But buying fertilizer, in and of itself, is not illegal, and police should not be in any way tracking purchases of perfectly legal items.

Shump on April 1, 2013 at 5:34 PM

But but but….Timothy McVeigh…think of the chiiiilllllddrrruuuuunnnnn. We should all live in a society where we must explain our every action to the magistrate, who will decide whether we are free to proceed or not, to protect the safety of the children. /sarc

I live on a 3 acre lot in the woods in a mid Atalantic State. The land produces about 20 lbs of methylenedioxy-methamphetamine (Ecstasy) a year (concentrated in the seed pod of a very common tree), put in by the original owner, GOD. I also have a bed of ½ kilo opium production and some very special mushrooms. Drug dealer or user, NO WAY! The point is that these items all occur naturally and in strengths that can be detected. Where are the protections for the innocents from the uninformed and miss guided?

These judges and legal scholars (and evidently Kat Ham) see the importance of protecting property rights while simultaneously advocating for the violation of individual rights (smoking pot is illegal) upon which property rights are predicated?

Lucky for me my traps and cats only kill the common unprotected field mice and avoid the protected ones that look and taste the same…..

The protected habitat is kind of a double-edged sword in my case. Although it’s completely ridiculous to spend so much money on protecting a stupid mouse that is genetically identical to other mice, the open space behind my house cannot be built in as long as it’s protected. So the nearest house is on top of the hill over 800 feet away from me – and I kind of like that – one gonzo whoopper of a moral dilemma….

Is there anything illegal about buying 100 pounds of fertilizer? It’s illegal to use fertilizer, in any amount, to make an explosive. But buying fertilizer, in and of itself, is not illegal, and police should not be in any way tracking purchases of perfectly legal items.

Shump on April 1, 2013 at 5:34 PM

I routinely use more than 100 pounds of fertilizer…on my zoysia grass lawn. The 10,000 square feet of zoysia can easily take 40 lbs of Nitrogen per year…which would be 200 lbs of common 20% Nitrogen fertilizer. As a bonus, if you use more Nitrogen, you need less weed killer.

So the focus on how much fertilizer you buy needs to be MUCH more detailed and nuanced before using it for any law enforcement purpose.

Government should follow the spirit, as well as the letter, of the Posse Comitatus Act. This would eliminate drones, assault vehicles, and other illegal and unconstitutional ways our government tries to turn our military assets loose upon our citizens.

If they are involved in marijuana then they deserve to have their property confiscated and any pets shot. Marijuana is a felony.

You care about traumatized children? They have been living in the sinful household and failed to turn their parents in. They should be taken away by authorities before the secondhand marijuana smoke turns them insane.

Seven Seas on April 1, 2013 at 3:37 PM

You’re a frightening and twisted individual. I can only hope that was satire.